Tuesday, October 9, 2007

The Recording Industry Association of America (RIAA), representing massive multinational corporations with tentacles in every corner of the global economy including the music business, has just won a lawsuit against a mother of two who refused to be pushed around.Jamie Thomas’ pockets were not nearly deep enough to mount the kind of legal defense for the occasion, but she rightly thought that paying an out-of-court settlement of several thousand dollars for the “crime” of sharing music online was ridiculous.So she told the RIAA they’d have to take her to court.They did, and they won.

The fact that one of these cases actually went to trial, the amount of money involved, and the fact that the defendant could have been your neighbor, a middle-aged single mother of two who was not selling anything, but was just engaging in commonplace song-swapping via Kazaa’s peer-to-peer network, has made this case newsworthy.But what lies beneath it are the ever-growing tens of thousands of people who have been spied upon, harassed and threatened with lawsuits if they didn’t pay the RIAA thousands of dollars for sharing copywritten music in a way the RIAA, the US government, the World Trade Organization, etc., deem inappropriate.

In spite of the RIAA’s campaign to staunch the profit losses of it’s corporate members by waging a campaign of fear and intimidation against your average everyday music fan, the numbers of legal and “illegal” downloads continue to rise rapidly.However, the industry’s campaign is not just about robbing working class American music fans of hundreds of millions of their hard-earned dollars.The music industry is waging a war for the hearts and minds of the people of the US and the world, spending tremendous amounts of money on advertising campaigns to convince us of the rightness of their cause and the wrongness of our actions.

The RIAA is both powerful and desperate.They are a multibillion-dollar industry that has been “suffering” financially for years, and they are up against the very nature of the internet – that being peer-to-peer sharing of information in whatever form (stories, songs, videos, etc.).The internet has given rise to unprecedented levels of global cultural cross-pollination, and it has led to a democratization of where our news, information, music, etc., comes from that has not been seen since the days of the wandering troubadors who went from town to town spreading the news of the day.

The RIAA is trying to use a combination of the law, financial largesse, and encryption and other technologies to try to reassert their dominance over global culture.But perhaps most importantly, they are trying to reassert the moral virtue of their position, the rightness of their positions vis-a-vis the concept of intellectual property and the notion that the fear campaign they’re engaged in somehow benefits society overall and artists in particular.

The success of their campaign to convince us that the average person is essentially part of a massive band of thieves can be easily seen.Look at the comments section following an article about the recent lawsuit, for example, and you will find people generally saying they thought Ms. Thomas was wrong but that the amount of money involved with the lawsuit is outrageous.You will find people admitting that they also download music illegally, and they feel bad about it, but it’s just too easy and the music in the stores is too expensive.

Obviously the idea of anyone being financially bankrupted for the rest of their lives because they shared some songs online is preposterous, and very few people fail to see that.But the idea that Ms. Thomas did something wrong is prevalent, even among her fellow “thieves,” and I think it needs to be challenged on various fronts.

“We’re doing this for artists”

The RIAA represents artists about as effectively as the big pharmaceutical companies represent sick people.I’ll explain.The vast majority of innovation in medicine comes from university campuses.The usual pattern is Big Pharma then comes in and uses the research that’s already been done to then patent it and turn it into an obscenely profitable drug (especially if it’s good for treating a disease common among people in rich countries).Then they say anybody else who makes cheap or free versions of the drug is stealing, and by doing so we’re stifling innovation and acting immorally.

Similarly, the vast majority of musical innovation happens on the streets by people who are not being paid by anyone.The machine that is the music industry then snatches a bit of that popular culture, sanitizes it, and then sells it back to us at a premium.They create a superstar or two out of cultural traditions of their choosing and to hell with the rest of them.Sometimes the musicians they promote are really good, but that’s not the point.The point is that if the RIAA were truly interested in promoting good artists, they’d be doing lots of smaller record contracts with a wide variety of artists representing a broad cross-section of musical traditions.But as it is, if it were up to the RIAA we’d be listening to the music of a small handful of multimillionaire pop stars and the other 99.9% of musicians would starve.

The overwhelming majority of great music in the US (and most certainly in the rest of the world) is not supported by the RIAA.Rather, it is marginalized as much as possible.“Payola” is alive and well.The commercial radio stations are paid to play RIAA artists and paid not to play anyone else.A strategic, financial decision is made to promote a few styles of formulaic anti-music, each style represented by a few antiseptic pop stars, the lowest common denominator that can be created by the corporations behind the curtain.On the other hand, the overwhelming majority of great writers, recording artists and performers are ignored, denied record contracts, promotion, airplay, distribution, etc.

In short, the RIAA does their best to stifle art, at the expense of money.They represent some artists, no doubt – a few very well-off ones, the few (occasionally very talented) beneficiaries of their money-making schemes.In the US, even the system through which royalties are distributed ends up benefitting only the industry and a few pop stars.The comparatively little airplay independent artists receive is measured by organizations like ASCAP in such a way that it is largely ignored, and royalties we should be receiving end up in the pockets of the industry.

“Downloads hurt CD sales of our artists”

OK, so the RIAA’s claims to represent artists in general may be laughable, but surely they have a point when they complain about the annually decreasing CD sales of Coldplay and the Rolling Stones?Even if they are just a cartel representing the interests of the few and trying to prevent access or representation by the many, surely suing average music listeners is at least some kind of response to their artists losing sales to these free downloads?

The kind of logic that sees loss of CD sales for major label artists as a direct response to being able to download their music online for free is flawed.It assumes that people would be buying the CD’s of these artists were it not available for free.The reality, I’d suggest, is very different and also hard to measure with any degree of accuracy.

With the rise of the worldwide web has come an explosion of interest in an ever-broadening array of music.People are downloading for free and paying for new music from all over.When bigtime artists get loads of conventional publicity and everybody can’t avoid knowing that Janet Jackson has a new CD out because this news is covering the sides of every bus in the city, many people will go ahead and download tracks from her new CD if they can find them on the web for free.But would they bother buying the CD in the current, rich musical environment of the internet otherwise?Or would they just move on and download other stuff from the independent artists they’re constantly discovering out there on the web instead?

I’d suggest the latter, and I’d further suggest that there is no reliable way of knowing whether or not I’m correct.If the major artists are losing sales because of the availability of their songs for free on the web, I couldn’t care less.However, I think what is more the case is they are losing sales to the internet itself, as a result of the blossoming of grassroots musical culture that the internet is fostering.

“Giving away music hurts small artists”

This is an argument the RIAA is fond of putting forward.Sadly, many of my colleagues, many other independent recording artists, believe it.They seem to think that if the major artists are losing sales to the internet, it must be happening to us, too.Either deliberately or through inaction, they don’t put their music up on the web for free download.Fans of theirs, it often seems, respect this and don’t put up the music either (sometimes).I’m convinced this is all born out of confusion, and these artists are shooting themselves in the foot.

What’s good for GM is definitely not what’s good for the guy in Iowa City making electric cars out of his garage.I constantly run into people who assume that I must be losing CD sales and suffering financially as a result of the fact that I put up all of my music on the web for free download. Sometimes they are artists who think I’m something of a scab.Other times they’re fans who appreciate the free music but are concerned for my financial well-being.

Principles aside for the moment, on a purely practical level, the reality is that many independent artists, most definitely including myself, have benefitted from the phenomenon of the free MP3.Like others, the fact that I’m making a living at all at music -- unlike the overwhelming majority of musicians – is largely attributable to the internet, and specifically to free downloads.

It’s not simple, and it’s fairly easy to hypothesize one thing or another and back it up with selective information.But overall, my experience has been that I sold a few thousand CD’s a year before the internet, and have continued to sell a few thousand CD’s a year after the internet.Gig offers and fans in far-off places have multiplied, however, and in so many of these cases it’s clear that they first heard my music on the internet, usually because someone they knew guided them to my website.

Every year, over 100,000 songs are downloaded for free from my website, and many more from many other websites where they are hosted in one form or another.This represents many times what CD sales could possibly have been for me without a major record contract, previous to the internet.My conclusion is that the free download phenomenon behaves more like radio airplay that I never would have had otherwise.And it’s international airplay that has led me to tours in countries around the world and gigs in remote corners of the US that resulted directly from someone telling someone else about songs of mine they could find online for free.

The reality, pop stars aside, is that the overwhelming majority of musicians who are able to make a living from their music make it from performing.For DIY musicians who are not having their tours booked by Sony BMG’s booking agencies, the most valuable resource are fans, especially the ones who are well-organized and enthusiastic enough that they want to organize a gig for us somewhere.Through fans like this, we can cobble together another tour.This process has been helped immensely by the “viral marketing,” the buzz that can happen when music people like is freely available on the web.

I’m sure that there are many people who would have bought my latest CD if they weren’t able to download it for free.Of this there is no doubt.But to think that this is therefore how the free download phenomenon works in general is extremely simplistic.For every person who downloads the songs instead of buying the CD, I’d guess there are 100 who hear the music on the web for the first time, who would probably never have heard it otherwise.For every 100 people who hear the music for free, say one of them will buy a CD to support the artist.For every 1,000, maybe one will organize a paying gig.This may not cause a big rise in CD sales, but ultimately it doesn’t hurt them, either, and what it does for sure is dramatically increase the overall audience of independent artists around the world.

“But people are stealing private property on those P2P networks”

There are many ways to try to compensate artists for original work, scientists for ground-breaking research, inventors for great new inventions, etc.There is no single, sacred way to do this.There are many ways to support art and artists in society and reward them for their work.Paying royalties based on airplay, downloads and/or CD sales is one way among many.

If royalties are going to be a primary way artists are compensated, there are many ways to do this, too.With CD sales, according to the current system, the songwriter gets something like 7 cents per song per CD sold in the stores.With radio airplay, the onus on paying the royalties that may eventually get to some of the artists is on the radio stations, and the radio stations are usually supported by corporate advertisers.

If the RIAA really thought their artists could compete with the rest of the world’s artists on a relatively open playing field, they’d probably be busily trying to create some kind of web-based infrastructure where corporate advertising would pay some kind of royalties for their artists.If this infrastructure existed, people would drift towards it as the path of least resistance, compared to finding music on P2P networks.

The problem is, the RIAA doesn’t control the internet the way they control the commercial radio airwaves, and they know that the musical tastes of the people are broadening, and threatening their pop star system, threatening their profit margins.They can’t keep out the competition, so they’re trying hard to control the environment in a way that’s most beneficial to their corporate interests -- screw everybody else.Screw independent artists and screw the public at large.

I don’t know if anybody can predict these things with certainty, but it seems to me the basic nature of the internet will ultimately triumph over the narrow interests of the music industry.The music industry will not cease to exist by any means, but it will shrink somewhat, and will have to give way to the flourishing grassroots music scene which the internet has nurtured.

It seems to me that the most relevant question in terms of the efforts of the RIAA is, at what cost to society at large?How far will they go to maintain this broken system, to maintain the inequities of their star-making machinery?

And another crucial question:why should a system be allowed to continue that massively rewards a few artists for their “original” records full of “original” songs, while leaving destitute the masses of musicians and others who created the cultural seas in which these “original” artists swim?

Musicians, as a whole, represent some of the richest people in the society and many of the poorest.The music industry’s system, in conceptual terms and in practical terms, is broken.It represents the interests of the monopolies against the interests of the rest of the world’s people, cultures, musical traditions and musical innovations.

To my fellow musicians I say put all your music up for free download, help your careers and screw the music industry.To music fans I say keep on downloading, don’t feel bad about it -- and try not to get caught.